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COMMONWEALTH v. OWENS (04/20/72)

decided: April 20, 1972.

COMMONWEALTH
v.
OWENS, APPELLANT



Appeals from judgments of Court of Common Pleas of Delaware County, March T., 1969, Nos. 633 and 630, respectively, in case of Commonwealth of Pennsylvania v. Gerald Owens.

COUNSEL

Edward J. Zetusky, Jr., for appellant.

O. Warren Higgins, Assistant District Attorney, with him Ralph B. D'Iorio, Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.

Jones, Eagen, O'Brien, Roberts and Barbieri, JJ. Opinion by Mr. Justice Eagen. Former Mr. Chief Justice Bell and Mr. Justice Pomeroy took no part in the consideration or decision of this case. Former Mr. Justice Barbieri took no part in the decision of this case.

Author: Eagen

[ 447 Pa. Page 296]

Gerald Owens was convicted by a jury in Delaware County of murder in the second degree and conspiracy to commit murder. Following the denial of post-trial motions in arrest of the judgments or for a new trial, prison sentences were imposed on both convictions, the sentences to run concurrently. An appeal from the judgment of sentence imposed on the murder conviction was timely filed in this Court. An appeal from the sentence imposed on the conspiracy conviction filed in the Superior Court was subsequently certified here. The appeals were then consolidated for argument.

Two assignments of error are properly raised by these appeals and require discussion,*fn1 namely, was the trial evidence sufficient to warrant the conviction of second degree murder; and, was Owens denied due

[ 447 Pa. Page 297]

    process of law because of ineffective trial counsel. We shall discuss each in turn.

It is fundamental that in evaluating the sufficiency of the evidence to support a criminal conviction the evidence must be read in a light most favorable to the Commonwealth, and the Commonwealth is entitled to the benefit of all inferences reasonably arising therefrom. Commonwealth v. Miller, 445 Pa. 282, 284 A.2d 739 (1971). So read, the trial record supports the following facts.

Owens and three other men, Thomas McKnight, Joseph McKnight and Kenneth McIntyre, at the instance of Owens agreed to entice John G. Gentry to a wooded area in Concord Township, and there to beat him up for having physically abused Owens' sister. As Gentry approached the agreed upon location, one of the four jumped him from behind and a struggle ensued; when Gentry tried to flee from the scene the conspirators followed in pursuit and, after catching up with Gentry, McIntyre first hit him with his fists and Owens then handed McIntyre the barrel of a rifle and told him to "finish" Gentry off so he could not inform the police. McIntyre then hit Gentry several times on the head with the rifle barrel and, after the victim lay prostrate on the ground, Owens and his companions fled the scene. Gentry was subsequently found dead where the assault occurred. The cause of death was determined to be due to complications from injury to the head and skull caused by multiple blows with a blunt instrument.

That the evidence was ample to convict Owens of murder in the second degree is beyond question. The fact that Owens did not personally inflict the fatal blows does not, under the circumstances, exculpate him from guilt. Cf. Commonwealth v. Doris, 287 Pa. 547, 135 A. 313 (1926); Commonwealth v. Murrano, 276 Pa. 239, 120 A. 106 ...


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